Found that the act Parliament about prescription of spuilzies and ejection, (1579, c. 81.) concerns only the privilege of the action, viz. the juramentum in litem, &c.
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The Constable of Dundee pursued the Laird of Strathmartin, for the wrongous intromission and away taking of the teinds of certain lands, and that pertaining to him by virtue of his inhibition and tack. Answered, That the action being of the nature of spuilzie, was prescribed by reason of the act of Parliament, that all actions of spuilzie prescribed, except they be pursued within the space of three years after the committing of the same. Answered, That this was not action of spuilzie, but of wrongous intromission, and the act of spuilzie differed from the same in tantum quod in actione spolii juratur in litem, and so the act of parliament ought to be understood according to the words, quæ sunt all actions of spulzie and of the like nature, behoved to be interpreted ubi juratur in litem. The Lords found, that the party might pursue for wrongous intromission, upon the inhibition, notwithstanding of the act.
